Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Wednesday, June 28, 2006

As reported, on June 26, 2006 Judge Layden-Stevenson of the Federal Court ruled against my application for a declaration that the Heritage Committee violated my official language rights when it refused to distribute documents that were an essential part of my testimony because they were in English only. Naturally, I’m disappointed and I’m considering an appeal. There is already interest in interventions. The decision is now online - in English only.

The bottom line is that the Heritage Committee, the Commissioner of Official Languages, and now the Federal Court are saying that bilingualism today means that I can’t use unilingual documents as part of my testimony to a Parliamentary Committee. For example, in this case, the Heritage Committee refused to let its members have copies of definitive, relevant treatise material by Mihály Ficsor, the world’s leading authority on the issue then being considered (the WIPO treaties) published only in English by Oxford University Press. This Committee chose to remain ignorant of this essential part of my testimony (i.e. Ficsor’s supportive analysis) rather than to have access to it in English only. My documents were not distributed to the Committee members.

I won’t go into the details of why this material was so essential to my testimony and presentation as a witness, but anyone familiar with the issue of national treatment, the WIPO treaties, and blank media levies will know that hundreds of millions of dollars are stake. Neither the substantive copyright issues nor the Committee’s Report were in issue before the Court in any way. The question before the Court involved the right of everyone to use EITHER the English language - OR the French language - to present testimony about this or any issue - WITHOUT being required to use BOTH languages.

Here is what s. 4 of the Official Languages Act states:

4. (1) English and French are the official languages of Parliament, and everyone has the right to use either of those languages in any debates and other proceedings of Parliament.

(emphasis added)

However, the Committee, the Commissioner of Official Languages and now the Court have ruled that a person’s right to use “either” official language when dealing with a parliamentary committee really means an obligation to use “both”, when it comes to written communication. So, "either" applies only to the spoken word, and not the written word. Written words must be in both official languages, despite what the Official Languages Act seems to so clearly say. The Court believes that this is consistent with the Official Languages Act and that, in any case, the Committee’s practice is protected by parliamentary privilege.

With respect, I believe that this is fundamentally wrong on both fronts.

In my view, this result is the absolute antithesis of bilingualism. I’m astounded that, in 2006, Parliament - which is our supreme federal institution - would seriously contend that “either” means “both” when it comes to official languages and that, in any case, it can rely on parliamentary privilege to get around the plain meaning of the Official Languages Act, which is quasi- constitutional legislation to which it has expressly bound itself. It’s a setback of several decades of struggle for language equality and access to their ruling institutions by individual Canadians. In my view, it’s contrary to the law and, above all, to common sense. Canadians in every province and of every political persuasion should be very concerned about this decision.

As to parliamentary privilege, there is a Supreme Court of Canada decision from last year very close on point penned by Justice Binnie called Vaid v. House of Commons, which held that the Speaker could not invoke privilege to get around human rights legislation. It seems to me that this should apply at least as muchto the Official Languages Act, which is "quasi constitutional" legislation and which is explicitly applicable to Parliament.

In any case, by saying that “either” means “both”, and by denying my right to provide essential documents to a Parliamentary Committee in the only official language in which they were available, and allowing that Committee to remain ignorant of this essential information, this interpretation effectively says that “either” means “neither”.

Wednesday, June 14, 2006

A partial antidote to Captain Copyright's propoganda can be found in the very clever EFF campaign against current excessive lobbying efforts and potential legislation in the USA. It's an online group of cartoons called The Corruptibles.

Friday, June 02, 2006

The Supreme Court of Canada has issued two brilliant decisions today which dismissed two appeals that would have - if successful - taken “famous mark” protection in Canada to a level even beyond what the big Americans trade-mark owners have in their own country under the badge of what they call “anti-dilution”. Readers will recall that Victoria’s Secret lost a case in the US Supreme Court three years ago against an adult novelty store named Victor's Little Secret that sold “tawdry merchandise”.

One appeal involved the attempt by MATTEL - owner of the BARBIE trade-mark to stop a Montreal BBQ Restaurant from calling itself BARBIE’S. The other involved an attempt by the French high end champagne maker VEUVE-CLICQUOT to stop a Montreal clothing shop chain from calling itself CLIQUOT.

The judgments were released together and were both written by Justice Ian Binnie. Although they involved different facts and legal issues, there are certain obvious common elements - the most important being the ambit of protection to what are regarded as “famous” trade-marks. The Court has said that the ambit is not unlimited. BARBIE may cover dolls and maybe more but it doesn’t extend to restaurants and likewise CLIQUOT may cover champagne and maybe more but not women’s clothes.

The result in no surprise to Canadian intellectual property lawyers. However, Justice Binnie, in his characteristic manner, clearly and constructively sets straight decades of sometimes confusing and even apparently contradicting case and statutory law that has left practitioners and business people perplexed. Here is my quick take on the two very important rulings:

• The fact that a trade-mark is famous is a factor - but not by any means determinative - that there can be a likelihood of confusion or deprecation of good will• there must be real evidence of a likelihood of confusion or deprecation of good will - not just speculation - and the absence of evidence of actual confusion is relevant and may even lead to an “adverse inference”. In other words, there’s got to be real evidence of a likelihood of confusion - and preferably of actual confusion - in order to succeed• confusion is assessed in the mind of the “The Casual Consumer Somewhat in a Hurry” and such consumer is to be given “ a certain amount of credit” and not regarded as “completely devoid of intelligence or of normal powers of recollection or are totally unaware or uninformed as to what goes on around them.”• the farther apart or more “remote” the wares and services in question are, the safer it will be for the less famous party• And lest anyone forget, “Unlike other forms of intellectual property, the gravamen of trade-mark entitlement is actual use. By contrast, a Canadian inventor is entitled to his or her patent even if no commercial use of it is made. A playwright retains copyright even if the play remains unperformed. But in trade-marks the watchword is “use it or lose it”.

Justice Binnie has also provided a wonderful guide to trade-mark lawyers in terms of what they will need in evidence in future cases and on the use of surveys and how important it is to ask the right questions in these surveys.

Mr. Volpe's campaign had the site shut down without knowing, it seems, who put it up: "Hi Everyone," wrote Brenden Johnstone, who is with the Volpe campaign, in an e-mail to other leadership campaigns. "There has been concern about how the issue of the Volpe donations was reflecting on the leadership race.

"My Office has had the website suspended through CIRA [Canadian Internet Registration Authority] and CDNS [Canadian Domain Name Services] and it will be down as soon as 6 p.m. I think the issue with the website has been dealt with..."

It will be very interesting see what proves to be the basis for this apparently on demand take down. This is not the way the system is supposed to work. CIRA and CDNS should explain right away what is going on here. Do we now have instant and apparently on demand political censorship in Canada? Even in China, things don't usually work this fast..

It is possible that the website owner "voluntarily" took it down - but that's not what the Globe is suggesting. Volpe's office is taking credit for having it "dealt with..."

An explanation would seem in order...this is being looked into...stay tuned...this could potentially be as interesting as the piggy bank debacle itself...

UPDATE at 4:15 PM

I indeed contacted Michael early today and he indeed looked into this promptly - Michael is indeed on the Board of CIRA. This is what he reports...

CIRA's response still leaves some questions in my mind. Is the system always this fast to respond when "The registrar advised CIRA that it made this request because its registrant would not provide valid Canadian contact information." ????

Thursday, June 01, 2006

Michael has a good post on Access Copyright's Captain Copyright “information” website for young kids and their teachers. The content reminds one in some ways of the Council of Ministers of Education, Canada (CMEC)’s pamphlet entitled Copyright Matters! – which also seems to tell teachers more about what they can’t do than what they can. At least Captain Copyright has pictures.

Links from Other Websites…Permission is expressly granted to any person who wishes to place a link in his or her own website to www.accesscopyright.ca or any of its pages with the following exception: permission to link is explicitly withheld from any website the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of, Access Copyright. In the event we contact you and request the link be removed, you agree to comply with that request promptly. If you link to or otherwise include www.captaincopyright.ca on your website, please let us know and create any link to our home page only.(emphasis added)

So, Michael, reach into to your conscience as to whether your blog might conceivably “in the opinion of the Access Copyright, be damaging or cause harm to the reputation of, Access Copyright.” If the answer is even maybe “yes”, you may be linking without permission! This could at minimum be taken as showing a lack of“respect for copyright”. Or maybe even constitute infringement! And of course you should be prepared to – upon request –to remove your link “promptly”.

Seriously, readers, it shouldn’t be necessary to say this – but it ironically is apparently necessary in view of just the kind of propaganda that www.captaincopyright.ca disseminates these days– that linking to a website and criticizing it doesn’t require permission. To suggest otherwise is nothing less than an insult to the public intelligence.

Is this the same Access Copyright that wants the Canadian government to enable it to license the Internet and to greatly increase its already considerable power and revenues through extended collective licensing?Is this the same Access Copyright that is already getting more than $30 million a year, mostly of taxpayers’ money, for its indemnity scheme? Is this the same Access Copyright that believes in “respect for copyright”?